Advertising & Marketing

Two putative class actions recently filed in the Northern District of California preview a new theory of consumer claims relating to per- and polyfluoroalkyl substances. Rather than rely on alleged omissions or representations about health risks, the plaintiffs claim that they relied on marketing statements that indicated the products they purchased were disposable and would completely degrade over time and that the presence of PFAS in the products means those marketing statements were false.
Continue Reading Is a Wave of PFAS Consumer Class Actions on the Horizon?

The National Advertising Division has recommended that Factor Nutrition Labs, LLC, discontinue its claim that its Focus Factor brain health supplement is “America’s #1 Clinically Studied and Patented Brain Health Formula.” NAD’s decision follows a challenge by Quincy BioScience, Inc., the maker of Prevagen brain health dietary supplement.
Continue Reading Making an Unsubstantiated Brain Health Claim? Think Again.

Responding to a challenge from Align Technology, Inc., maker of Invisalign, the National Advertising Division recommended that SmileDirectClub modify certain of its comparative advertising claims, while finding that others were sufficiently substantiated.
Continue Reading NAD Recommends SmileDirectClub Straighten Out Some of its Aligner Advertising Claims

On April 21, the FTC announced a record-setting $9.3 million settlement with online retailer Fashion Nova for violating the decades-old Mail Order Rule by failing to meet advertised shipping times and failing to adequately compensate consumers affected by the delays.
Continue Reading Will It Still be “In” When It Gets Here? Online Fashion Retailer Agrees to Largest Ever Settlement for Slow Deliveries

On April 3, 2020, the United States Environmental Protection Agency (EPA) and leading retailers participated in a conference call to discuss ways to protect American consumers from fraudulent COVID-19 disinfectant product claims. As the pandemic continues to wage on, some manufacturers have started to advertise their products as effective against the virus despite a lack of scientific evidence supporting the claim. Such advertising violates federal law and potentially endangers consumer health and the environment, and could expose retailers to liability.
Continue Reading Retailers Working with EPA to Protect Consumers from Fraudulent COVID-19 Disinfectant Claims

Williams-Sonoma, Inc., has agreed to pay $1 million to the FTC in settlement of claims that the home furnishing company made false and unsubstantiated representations that certain products were made in the United States. In its complaint, the FTC alleged that Williams-Sonoma—also doing business as Pottery Barn, West Elm, Rejuvenation, Outward, Mark & Graham and other brands—deceptively claimed that the company’s Goldtouch Bakeware products, Rejuvenation-branded products and Pottery Barn Teen- and Pottery Barn Kids-branded upholstered furniture were made in the USA. In reality, many of these products were wholly imported or contained significant imported materials.
Continue Reading Home Furnishings Retailer to Pay FTC $1 Million to Settle “Made in the USA” Claims

In light of the various restrictions on retail businesses being issued nationwide to fight the spread of COVID-19—such as the “safer at home” orders issued in Los Angeles County and throughout the entire State of California last week—one Southern California city is taking action to support local businesses, while continuing to push compliance with the new legal restrictions.
Continue Reading Supporting Local Retail in a Time of Local Restrictions

On March 6, 2020, the FTC announced a settlement with Teami, LLC and its owners over allegations that the company falsely promoted its Teami brand tea products as capable of curing serious health conditions and causing significant weight loss, supported by endorsements by well-known social media influencers who did not adequately disclose that they were being paid to promote their products.
Continue Reading FTC targets Teami’s Unsupported Health Claims and Use of Social Media Influencers

Trademarks allow businesses to protect brand names and logos used on their goods and/or services. Unlike other IP, rights in a registered trademark can last indefinitely as long as the mark is in continuous use and all the required maintenance documents are filed. Failure to file such documents results in the cancellation of the trademark registration. Once canceled, the mark can still be re-applied for by the original owner and, in certain instances, another enterprising business. Specifically, assuming the mark has been legally abandoned, the other enterprising business can file its own trademark registration application for the mark. A recent case from the Trademark Trial and Appeal Board (TTAB) illustrates how the original owner can still have standing to oppose another business’s registration of a mark that’s remained dormant for over a decade.
Continue Reading A Pulse Found in “Dead” Trademark Rights